Kilby v R [2023] NSWCCA 247

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kilby v R [2023] NSWCCA 247 Hearing dates: 29 September 2023 Date of orders: 16 October 2023 Decision date: 16 October 2023 Before: Leeming JA [1] Davies J at [2] Wilson J at [47] Decision: (1) Extend time to 8 June 2023 for filing the Notice of Appeal (2) Grant leave to appeal. (3) Dismiss the appeal. Catchwords: CRIME – appeals – appeal against sentence – multiple counts of historical child sexual abuse against two complainants – whether complainant was under authority of the offender as a consequence of extended family and family interactions – described by sentencing judge as an aggravating feature – whether sentencing judge fell into De Simoni error by considering aggravating circumstance that applicant abused position of authority – sentencing judge did not consider the position of authority as establishing a feature of statutory aggravation – issue of authority part of the instinctive synthesis – error not made out – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) ss 61I, 61J, 61M, 61N, 61O, 66C, 66EA Crime (Sentencing Procedure) Act 1999 (NSW) s 21A Cases Cited: Burr v The Queen [2020] NSWCCA 282; (2020) 285 A Crim R 504 Cordeiro v R [2019] NSWCCA 308 Jadron v R [2015] NSWCCA 217; (2015) 253 A Crim R 450 RD v R [2013] NSWCCA 306 Rainbow v R [2018] NSWCCA 42 The Queen v De Simoni (1981) 147 CLR 383 Texts Cited: Nil Category: Principal judgment Parties: Thaddeus Kilby (Applicant) The King (Respondent) Representation: Counsel: S Goodwin (Applicant) E Wilkins SC (Respondent)